DECISION AND ORDER Defendant is charged by misdemeanor information with one count of theft of services in violation of Penal Law §165.15 (7). By motion filed April 22, 2019, defendant moves to dismiss the information in the above-captioned matter pursuant to Criminal Procedure Law §§100.15, 100.40, and 30.30. After review of the motion papers and respective arguments therein, the accusatory instrument, other papers on file with the court, and prior court proceedings, defendant’s motion is granted and the accusatory instrument is dismissed. I. Background and Procedural Posture On November 18, 2018, defendant was arrested after allegedly diverting electricity from a neighboring homeowner’s external power outlets to defendant’s air conditioner without permission or authority to do so. The deponent, Detective Brian MacArthur, informed by complainant Donna Loece, alleges that between September 8, 2018 and September 12, 2018, complainant observed two electrical extension cords running from the external power outlets outside her residence to defendant’s air conditioning unit. Deponent further alleges that he is informed by Pete Bartoszek, manager of Breezy Point Cooperative, that defendant, the sole occupant of 133 Reid Avenue, was issued a violation notice on September 17, 2018, for running an extension cord from his air conditioner to the complainant’s external power outlets. Defendant was issued a desk appearance ticket, returnable for arraignment on December 18, 2018. At that time, the People were unable to convert the complaint to an information for want of a supporting deposition. As such, the case was adjourned to February 20, 2019, for conversion. On January 4, 2019, the People, off calendar, filed and served a supporting deposition. On February 20, 2019, the People maintained their readiness for trial and the case was adjourned to April 22, 2019, for trial. On April 22, 2019, defendant filed the instant motion claiming the misdemeanor information is facially insufficient. In it, defendant argues the allegations fail to sufficiently track the statutory language of Penal Law §165.15 [7], particularly the requirement that power or supply be diverted from a meter or other equipment belonging to a supplier. By response filed on May 21, 2019, the People oppose. II. Discussion A. Facial Insufficiency To be facially sufficient, an accusatory instrument must specify the offenses charged, and contain factual allegations of an evidentiary nature that tend to support them (see CPL 100.15 [2], [3]). Such factual allegations, together with any supporting depositions or other documents, must consist of non-hearsay allegations that provide reasonable cause to believe that the defendant committed the offenses charged, which if true, establish each and every element of those charges (see CPL 100.40[1]; People v. Henderson, 92 NY2d 677, 679 [1999]). Sufficiency of an accusatory instrument is a non-waivable jurisdictional defect that requires dismissal if not satisfied (see People v. Alejandro, 70 NY2d 133 [1987]). In reviewing and evaluating whether the pleaded allegations establish reasonable cause to believe that a person has committed an offense, the court must do so in the light most favorable to the people (People v. Williams, 84 NY2d 925 [1994]; People v. Contes, 60 NY2d 620 [1983]; (People v. Barona, 19 Misc 3d 1122[A] at 1 [Crim Ct, NY County 2008]). Essentially, a facially sufficient accusatory instrument, or information must provide reasonable cause that the defendant committed the charged offenses and establish a prima facie case against him. Moreover, the information “should be given a fair and not overly restrictive or technical reading” (People v. Casey, 95 NY2d 354, 360 [2000]). Reasonable cause exists when “evidence or information which appears reliable discloses facts or circumstances…of such weight and persuasiveness as to convince a person of ordinary intelligence…that it is reasonably likely that such offense was committed and that such person committed it” (CPL 70.10 [2]). Penal Law §165.15 [7] states that a person is guilty of theft of services when: He knowingly accepts or receives the use and benefit of service, including gas, steam or electricity service, which should pass through a meter but has been diverted therefrom, or which has been prevented from being correctly registered by a meter provided therefor, or which has been diverted from the pipes, wires or conductors of the supplier thereof. In any prosecution under this subdivision proof that service has been intentionally diverted from passing through a meter, or has been intentionally prevented from being correctly registered by a meter provided therefor, or has been intentionally diverted from the pipes, wires or conductors of the supplier thereof, shall be presumptive evidence that the person who accepts or receives the use and benefit of such service has done so with knowledge of the condition so existing. Here, defendant alleges that the accusatory instrument is facially insufficient because the factual allegations fail to establish the statutory elements of Penal Law §165.15 (7). At best, defendant contends, it alleges defendant diverted services from another homeowner, but not from a supplier thereof, and another homeowner is not a supplier of services. Thus, according to defendant, Penal Law §165.15 (7) does not encompass the conducted defendant is accused of engaging in. The People, in opposition, rely on People v. Neiss, 73 AD2d 938 (2d Dept 1980) in support of their position that the statute contemplates a permissible inference defendant committed a theft of services. Based on defendant’s utilization of the complainant’s external power outlets without complainant’s permission, the People argue that theft of service inferences suffice “to the extent that they allow, without requiring, the factfinder to infer the elemental fact from proof of the basic fact….” They note that in Neiss, the court held the inference “test is fully satisfied by the presumption contained in the theft-of-services statute. The statute does no more than to permit the establishment of a prima facie case by proof of the basic fact” (id. at 940). Neiss, however, is inapposite because the theft of services statute itself is inapplicable to the conduct alleged here. In Neiss, the Appellate Division described the historic distinction between “gas the commodity as property, and the actual supplying of the commodity as a service” (id. at 939). Furthermore, the Neiss court explained that according to this distinction, while defendants “may be properly prosecuted under theories of larceny (for the actual taking of the property gas),” they may be properly prosecuted under “theft of services (for the wrongful receipt of the service of having the gas supplied, effected by having tampered with equipment designed to convey and meter the property)” (id.). Finally, although the Neiss court acknowledged some overlap, it also indicated that while a successful theft of service will result in the theft of a commodity, such overlap should not negate the “conceptualization of the supplying of the commodity…(such as maintaining gas lines, valve systems, employing maintenance crews, etc.), as a service which is separate and independent from the commodity itself” (id.). Thus, although the Neiss court envisioned a scenario where a defendant could be charged for both theft of services and larceny, it never asserted that the elements of both had merged. Indeed, the facts here are quite unlike those in Neiss, which supported a theft-of- service presumptive inference charge. In Neiss, a landlord of 30 residential buildings stole large quantities of natural gas by interfering with the supply of such commodity. Clearly, no such tampering with equipment is present here. A presumptive inference for theft of services would seem quite attenuated from the facts presented here, where defendant plugged his appliance into his neighbor’s outlets without permission. If anything, this case would appear to fall in the larceny category. Indeed, McKinney’s commentary to Penal Law §165.15 states, “[s]ubdivision seven was added in 1976 and is concerned with those who knowingly accept or receive the use and benefit of meters which have been tampered with” (William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Penal Law §165.15; see also Richard Greenberg, 6 NY Prac., Criminal Law §15:15 (4th ed) [describing theft of services as a "misnomer," and averring that §165.15 [7] requires no actual taking of services, “but only tampering with meters or other equipment for the purpose of obtaining services without paying”]). Moreover, the complainant here is clearly neither a supplier nor public utility as envisioned by Penal Law §165.15 (7) (see Neiss, 73 AD2d at 939). The complainant does not sell electricity to outsiders for a fee and the electrical outlet defendant used is not business equipment. Therefore, the complainant cannot be considered a supplier of electricity for purposes of the theft-of-services statute. Because the complainant is not a supplier under the statute, then, the theft-of-services statute is inapplicable. In short, the accusatory instrument fails to demonstrate that defendant in any manner obtained services from a public utility through tampering or manipulation of a meter or other electrical equipment. Defendant’s conduct was directed exclusively at the complainant, his neighbor. While this conduct is clearly deceitful, dishonest and likely actionable under different provisions of the penal law, it is not the type of misconduct proscribed under Penal Law §165.15 (7). B. Speedy Trial CPL 30.30 functions as a “readiness rule,” enacted to ensure “prompt prosecutorial readiness for trial” (People v. Sinistaj, 67 NY2d 236, 239 [1986]). CPL 30.30 (1), the provision of the statute relevant to the issues at hand, instructs the People when they need to be ready for trial after the commencement of a criminal action (CPL 30.30 [1]). CPL 30.30 (1) fixes time according to offense level. The time-periods are calculated based on the most serious offense charged in the accusatory instrument (CPL 30.30 [1]; People v. Cooper, 98 NY2d 541, 543 [2002]). If the People are not ready within the proscribed time and fail to demonstrate that any exclusion applies, the case should be dismissed (see People v. Brown, 28 NY3d 392, 403 [2016]). To determine whether the People have satisfied their obligation of trial readiness, the time elapsed between the filing of the first accusatory instrument is calculated along with the People’s declaration of readiness, less any periods of delay excludable under the statute terms (see CPL 30.30 [4] & [5]). “The failure to declare readiness within the statutory time limit will result in dismissal of the prosecution, unless the People can demonstrate that certain time periods should be excluded” (People v. Price, 14 NY3d 61, 64 [2010]). Once the defendant has alleged that the People were not ready within the statutory period, the People must establish an applicable exclusion (Brown, 28 NY3d at 403; see also People v. Luperon, 85 NY2d 71, 81 [1995]). To prevail on a motion to dismiss pursuant to CPL 30.30 (1) (c), a defendant must present sworn allegations of fact establishing an unexcused delay in excess of the statutory limit (People v. Allard, 28 NY3d 41 [2016]; Cortes, 80 NY2d 201, 215-216 [1992]; People v. Santos, 68 NY2d 859, 861 [1986]; People v. Lomax, 50 NY2d 351, 357[1980]). At minimum, the defendant must claim that the People failed to announce their readiness for trial within the statutorily prescribed period (Allard, 28 NY3d at 41; People v. Luperon, 85 NY2d 71, 77-78 [1995]). Until the People make the initial statement of readiness, all delays are chargeable entirely to the People absent the defendant’s consent (pre-readiness delay). Once the defendant has shown the existence of delay beyond the statutory period, the burden of proving that certain periods should be excluded falls on the District Attorney (Allard, 28 NY3d at 41; Kendzia, 64 NY2d at 338; People v. Berkowitz, 50 NY2d 333, 349 [1980]). If the District Attorney fails to do so, the motion must be summarily granted (CPL 210.45 [4]). Here, the People had 90 days to declare and maintain their readiness on a A misdemeanor (CPL 30.30 [1] [b]). Because the People never filed a facially sufficient accusatory instrument (see CPL 100.15 [2], [3]), they must be charged with all time from the day following the commencement of this action (arraignment) until April 22, 2019, the day on which this motion was filed, for a total of 124 days. As a result, the accusatory instrument is dismissed. III. Conclusion This Court finds that, given the People have not proffered a valid statement of readiness due to a jurisdictionally deficient instrument, the People are properly charged with 124 days for a Class A misdemeanor. As such, the 90-day period in which the People are required to be ready for trial has elapsed. Defendant’s statuary speedy trial right pursuant to CPL 30.30 has therefore been violated, and defendant’s motion to dismiss the accusatory instrument is granted. Dated: August 1, 2019
